"Document, Document, Document" Is Only Half the Battle
As someone who has tried dozens of employment trials — including a very
recent one in which a jury found for my client — I can attest to the importance
of having good documentation that corroborates the employer’s conversations
with employees, especially when the employee subsequently disputes what was
said. In my recent trial, for example, we were able to admit dozens of investigation
reports that were made close to the time of the events and contradicted the
plaintiff’s version of events. The jury was allowed to bring these documents
back to the jury room with them and review them in deliberations — a very
powerful tool for a jury that is otherwise relying on its collective memory in
discussing evidence. Unfortunately, trial lawyers sometimes forget to tell
their clients what they need to do in order to ensure that their valuable
documentation will be admissible at trial.
Consider the human resources manager who interviews multiple witnesses
to an alleged harassment claim. Like many interviewers, the HR manager takes
sketchy notes, in which she writes down the names of witnesses and provides a
brief chronology of the allegations. The only real details in her notes are
specific statements that the complaining witnesses allege that the harasser
used in the complainant’s presence. Months later, after an EEOC charge has been
filed, the HR manager takes her preliminary notes and puts together a cogent
written narrative which she then provides to the Company’s lawyer. Unfortunately,
the cleaned up documentation that was put together months after the fact is
unlikely to be admissible.
So what should HR supervisors do to prevent this from happening? While there
is nothing wrong with taking “rough notes” when initially investigating a
complaint — in fact, many interviewers find that it is easier to listen to a
witness and assess his or her credibility if the interviewer is not preoccupied
with making a word-for-word transcription — a good investigator should always
make it her regular practice to prepare a detailed record of the interview as
soon as possible after the interview, and not wait for months to pass.
Additionally, in order for investigation notes to be admissible, your
lawyer will need to be able to show that it was a regular practice of the human
resources manager to prepare reports of such investigations. In other words,
this was not a one-time situation. When the former employee’s lawyer challenged
the investigation notes that my HR manager prepared in this case, I was able to
show the court that the human resources manager had boxes of similar reports
that he had prepared. In other words, this was a typical business record.
Documentation is important, but make sure that your documentation is
such that it will be useable by your lawyer if you ever end up in trial.
This communication is
provided by Vinson & Elkins LLP for educational and informational purposes
only and is not intended, nor should it be construed, as legal advice.